TRIBAL CHAIRMAN ASKS TRIBAL MEMBER TO REMOVE “OBSCENE” STATUE

March 13, 2014 (Santa Ysabel)—Iipay tribal member June Sortore has refused a request from tribal chairman Virgil Perez to take down a statue of a hand with the middle finger raised.

In a letter delivered to Sortore by tribal law enforcement, Chairman Perez called the hand-made statue ““indecent and offensive,” noting that it can be viewed by children on a school bus. Though the Iipay Tribal Chairman says the middle finger is an “obscene gesture,” Sortore says she erected the statute as a symbol of defiance against former Tribal Chairman Johnny Hernandez.

“I built the statue to show him we had not lost nor have we given up hope,” she says. She claims her form of expression is protected as free speech under the U.S. Constitution and further, that the symbol has historical significance.

She points out that the symbol of the middle digit expression dates back to a French tradition which during times of war against the English, the French would cut off captured English soldiers’ middle fingers. The English soldiers who had not suffered this loss and embarrassment, would ride by proudly waving their “middle digit” at the French as a sign that they still possessed the ability to pull their bows, and live to fight another day.

Does the Tribal Council have authority to trump the US constitution in favor of decency?

The Bill of Rights specifically protects Americans from incursions and limits to the exercise of free speech. While Sortore’s statue is securely placed on her land, would the hand-made statue represent a public indecency--or a case of free speech?

In a recent 2013 court case in New York, Swartz v. Insogna, a man was pulled over for giving an officer “the middle finger” and was later charged with disorderly conduct (lawsuit-in-middle-finger-arrest) . The case was dismissed, with the 2nd U.S. Circuit Court of Appeals deciding “the nearly universal recognition that this gesture [the middle finger] is an insult.” While an insult might be verbally painful, it is recognized as a form of communication, and therefore protected as speech, the court found.

The next logical question is, how far does the First Amendment go? Does the freedom of speech protect against infringements on artwork? We have already established that the First Amendment allows you to legally flip off a police officer (though not smart), but does it also protect your right to build a piece of artwork depicting the insult? Are there decency limits to where and when such artwork may be displayed?

According to the 2012 O’Brien vs. Borowski case, the limits on the freedom of speech to exercise the middle finger cease when such actions may “constitute fighting words or a true threat” (fighting-wordsnot-protected) such as inciting violence. So as long as Sortore merely displays her handmade sculpture as a piece of artwork, and does not attempt to raise the statue in anger or otherwise aggressively wield it as a weapon, she may well be constitutionally protected.

Sortore has incurred the wrath of Tribal leaders in the past for her outspoken personality. Just as the English raised their middle fingers to the French, Sortore has erected the ten-feet-tall statue to signal her antipathy towards what she has viewed as repressive attitudes of her Tribal Council.

There is also the issue of tribal sovereignty. While Native American reservations are treated as sovereign nations in many respects, there are also limits to tribal powers.

Sortore says that although the Iipay Nation is a federally recognized tribe, “We are still governed by the United States Constitution.”